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DEA Stops Arizona Execution

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Suppose on a dry, clear, sunny day you are driving on a lightly traveled freeway.  A highway patrol officer clocks you at 71 where the speed limit is 70.  Is he obligated to pull you over and write a ticket?  Of course not.  Yes, you are in violation, but your conduct does not present the danger that is the underlying purpose of the speed limit law.  Driving 71 is not materially less safe than driving 70.  The officer has discretion to not cite you, and nearly all officers would refrain.

Federal regulation of drugs has two purposes:  to insure that drugs used for medical purposes are safe and effective and to keep them out of the hands of drug abusers.  Neither purpose is implicated by the use of drugs to execute a death sentence.
In Heckler v. Chaney, 470 U.S. 821 (1985), death-sentenced murderers petitioned the FDA to stop the use of drugs for lethal injection.  The FDA refused, first because it was unclear they had jurisdiction.  Second, "enforcement proceedings in this area are initiated only when there is a serious danger to the public health or a blatant scheme to defraud.  We cannot conclude that those dangers are present under State lethal injection laws, which are duly authorized statutory enactments in furtherance of proper State functions. . . ."

The Supreme Court held that it did not need to resolve the jurisdictional question, because the agency discretion rationale was clear.  Even Justices Brennan and Marshall concurred in the judgment.

Recently, the Drug Enforcement Administration has been going around the country seizing states' supplies of sodium thiopental imported from overseas.  Yesterday, they unconscionably interfered with an execution in Arizona just hours before it was to be carried out.  Ariane DeVogue has this story for ABC. 

The DEA has been tight-lipped about why it is doing all this.  There are minor differences in potency between foreign sources and the prior (no longer available) domestic ones, but given the massive overdoses used in lethal injection that is not a genuine source of concern.

Congress should do two things here.  First, call the Attorney General before an oversight committee and have him explain precisely why long-standing policies of noninterference, followed through administrations of both parties, have suddenly been abandoned.  Second, Congress should amend the relevant statutes to make clear what the FDA has long understood -- use of drugs for lethal injection is not within the purpose of the law, and it should not be applied in this area.

2 Comments

Clearly this is a campaign to end the death penalty by stealth. They should go back to hanging or firing squad.

This is an appalling exercise. One would think that the federal government would not re-victimize a family who lost their daughter to a terrible crime, but one would be wrong. Such as it is for the Obama Justice Department.

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